死缓限制减刑的司法适用——最高人民法院第12号指导案例评析

Judicial Application of Restrictive Commutation of Death Penalty with Suspension: Comment on No. 12 Guiding Case of the Supreme People's Court

死缓限制减刑是为了弥补现行死缓制度的缺陷,充分发挥其限制死刑立即执行适用的功能而设立的一项刑罚制度。从性质上看,死缓限制减刑仍属于死缓制度的内容,因而其适用应当满足死缓适用的基本条件。刑法与司法解释规定了限制减刑的适用依据,但过于原则,尚需结合立法目的、量刑原则等予以进一步明确。最高人民法院颁布指导案例是明确死缓限制减刑适用依据的有益尝试,但所选取的情节在决定死缓限制减刑的功用上需要深入剖析。

Restrictive commutation of death penalty with suspension is a new device which aims to fill the gap of death penalty with suspension and promote its function of controlling immediate execution of death sentence. In view of its nature, restrictive commutation still belongs to the system of death penalty with suspension, so its application shall satisfy the basic conditions of the latter. The criminal law and judicature interpretation stipulate the applicable basis of restrictive commutation, however, these provisions are so general that they should be further clarified with considering the purpose of legislation and the principles of sentencing. The Supreme People's Court has made a beneficial attempt to clarify the applicable basis of restrictive commutation by promulgating the guiding case, but the respective functions of the selected circumstances should be analyzed deeply.